Citation Nr: 1814192
Decision Date: 03/08/18 Archive Date: 03/14/18
DOCKET NO. 14-18 803 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to helpless child benefits on behalf of the appellant on the basis of permanent incapacity for self-support before he attained the age of 18.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. B., Counsel
INTRODUCTION
The Veteran served on active duty from August 1952 to December 1954.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
In January 2018, the appellant filed a Motion to Advance the appeal on the Docket due to significant illness. 38 C.F.R. § 20.900 (c) (2017). The motion to advance the case on the docket is granted.
FINDINGS OF FACT
1. The appellant was born in May 1984; his 18th birthday was in May 2002.
2. The appellant has not been shown to have been permanently incapable of self-support by reason of a mental or physical condition prior to attaining the age of 18.
CONCLUSION OF LAW
The criteria for entitlement to VA benefits as a helpless child of the Veteran are not met. 38 U.S.C. § 101 (4)(A) (West 2012); 38 C.F.R. § 3.356 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
At the outset, the Board notes that the appellant's birth certificate has not been provided or obtained and there is no documentation that he is in fact the Veteran's son. Nevertheless, the Board finds that even if he were to be considered the Veteran's son, the record does not demonstrate that the required criteria are met in this case.
In order to establish entitlement as a helpless child, it must be shown that the child was permanently incapable of self-support by reason of mental or physical defect as of his or her 18th birthday. 38 C.F.R. § 3.356 (a) (2017). Rating determinations regarding helpless child status are made solely on the basis of whether the child is permanently incapable of self-support through his or her own efforts by reason of physical or mental defects. The Court has held that, in "helpless child" cases, the focus must be on the claimant's condition at the time of his 18th birthday. See Dobson v. Brown, 4 Vet. App. at 445 (1993). In other words, for purposes of initially establishing helpless child status, the claimant's condition subsequent to his 18th birthday is not for consideration. If a finding is made that a claimant was permanently incapable of self-support as of his 18th birthday, however, then evidence of the claimant's subsequent condition becomes relevant for the second step of the analysis, that is, whether there is improvement sufficient to render the claimant capable of self-support. Id.
Unfortunately, evidence has not been submitted demonstrating that the appellant was determined to be permanently incapable of self-support by reason of mental or physical defect before May 2002. The only medical evidence of record prior to that date is a private treatment records documenting February and March 2002 treatment for depression and anxiety. While the treatment record notes the Veteran's depressed mood and anxious affect, the treatment record does not indicate that the Veteran was incapable of self-support by reason of a mental or physical defect. There is no evidence of such prior to the May 2002.
The Board acknowledges the appellant's contention in an August 2014 statement that his disability was diagnosed before his 18th birthday. However, the standard is not whether a disability was diagnosed prior to the age of 18, but rather whether any disability rendered the child permanently incapable of self-support by reason of mental or physical defect before their 18th birthday. The appellant failed to submit any evidence of his ability or inability to perform ordinary tasks, his school or employment history, or any evidence demonstrating that he was permanently incapable of self-support prior to the age of 18. He, himself, has also not explained why he feels he was permanently incapable of self-support before he was 18.
Accordingly, the Board finds that the appellant is not entitled to recognition as the "helpless" child of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to recognition as the "helpless child" of the Veteran on the basis of permanent incapacity for self-support prior to attaining age 18 is denied.
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B. T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs